Ruling fixes negative contingency deduction at 25 percent rather than 75
In a vehicular accident case, the British Columbia Court of Appeal raised the damages award by $760,796.19 upon setting aside a judge’s application of a 75 percent negative contingency deduction and replacing it with a 25 percent deduction.
On July 6, 2018, the vehicle of the respondent in Mariotto v. Rowntree Estate, 2026 BCCA 215, struck the appellant’s stopped vehicle from behind at low speed. The minor accident did not deploy the airbags in the appellant’s vehicle and caused almost no damage to either vehicle.
The appellant commenced a case based on her injuries. The respondent, later represented by her estate, admitted liability for the accident.
The trial issues included the nature and extent of the appellant’s injuries, her pre-existing health conditions, and the quantum of her damages. At trial, the respondent sought a negative contingency deduction of 40–50 percent based on the appellant’s pre-existing conditions.
On July 18, 2025, the trial judge of the Supreme Court of British Columbia applied a 75 percent negative contingency deduction to all heads of damage. The judge awarded the appellant net damages of $378,192.98, comprising:
- non-pecuniary damages of $50,000
- past wage loss of $82,040.50
- future lost income-earning capacity of $156,993
- future care costs of $84,749.25
- special damages of $4,410.23
On appeal, the appellant alleged that the judge’s application of the negative contingency deduction did not have evidentiary support and did not apply the correct legal principles. The appellant added that the judge should not have applied the deduction to all categories of damages.
25% deduction applied
The Court of Appeal for British Columbia allowed the appeal and instead opted for a 25 percent negative contingency deduction. The appeal court also allowed the appeal against the deduction’s application to the appellant’s past wage loss and special damages.
Thus, the appeal court found the appellant entitled to total damages of $1,138,989.17, comprising:
- non-pecuniary damages of $150,000
- past wage loss of $246,121.50
- lost income earning capacity of $470,979
- future care costs of $254,247.75
- special damages of $17,640.92
First, the appeal court ruled that the trial judge erred in principle in applying a 75 percent negative contingency deduction.
The appeal court explained that the evidence did not support a strong likelihood that, if the minor collision played a role in the appellant’s present condition, then she likely would have ended up in the same place from “some other everyday mishap involving a comparatively slight transfer of force to her person.”
Given the appellant’s psychological vulnerability, the appeal court acknowledged a real and substantial possibility that she would have ended up in her present condition in any event.
However, the appeal court found this possibility relatively unlikely. The appeal court noted that the appellant had experienced and recovered from:
- everyday mishaps
- prior motor vehicle accidents without comparable consequences
- a recent fall while walking her dogs, which did not result in her current symptoms
Second, the appeal court held that the judge committed an independent error by applying the deduction to agreed-upon special damages.
The appeal court noted that the respondent did not contest the appellant’s special damages, which reflected previously incurred special expenses that the judge’s future contingency findings should not impact.
Next, the appeal court determined that it should apply the reduced contingency deduction of 25 percent to the appellant’s future care costs, partly representing her future risk of ending up in her current condition in any event of the accident.
